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Waso v Motor Vehicle Insurance Ltd [2021] PGNC 623; N9664 (1 December 2021)

N9664


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WS No 707 OF 2013 (CC4)


BETWEEN:
PAULINE WASO
Plaintiff


AND:
MOTOR VEHICLE INSURANCE LTD
Defendant


Waigani: Wurr AJ
2021: 11th October, 19th November, 01st December


TRIAL – LIABILITY ––personal injury claim – Negligence not particularized in pleadings-pleadings when read as a whole disclosed caused of action - statement of agreed and disputed facts and legal issue raised no issue on pleadings or liability but damages– statement of agreed and disputed facts is akin to a consent order and or contract – inconsistency with pleadings and statement of agreed and disputed facts and legal issues, statement of agreed and disputed facts and legal issue prevails - liability entered.

DAMAGES – Assessment of – Personal injuries – medical reports adduced into evidence contrary to Section 37 of the Evidence Act- less weight given rather than no weight based on photographs and clinical notes - interest of justice paramount consideration – inflation relevant consideration - global award- Award of K66, 000.00.


DAMAGES – Economic loss – Plaintiff obliged to prove her earnings – Self-employed at time of accident- Qualified as a secretary and or administration officer - Nominal award – Inflation relevant consideration - Award of K20,000.


The plaintiff claims she was involved in a motor vehicle accident which resulted in various injuries to her person. She claims for economic losses and general damages for pain, suffering and loss of enjoyment of life to be assessed. This was a trial on both liability and assessment of damages. The defendant argued for the claim to be dismissed for lack of pleadings however the statement of agreed and disputed facts and legal issues for determination admitted liability and raised issues only on quantum. The plaintiff claimed K40, 000.00 for economic loss (past and future), K114, 886.79 for general damages and K1, 070.00 for special damages, which is a total of K160, 956.79 to be paid with interest at 8% per annum from date of filing of the writ to the date of judgment.


Held:

  1. The statement of claim when read as a whole sufficiently disclosed a cause of action founded on the tort of negligence under the Motor Vehicle (Third Party Insurance) Act.
  2. Where parties agree, sign and file a Statement of Agreed and Disputed Facts & Legal Issues for Trial (SOADFLIT), it is the end product of the pleadings and evidence. It crystalizes the issue (s) for trial. The SOADFLIT is akin to a consent court order and or contract. Parties are bound by it and cannot go back to raise additional issues or facts not captured in the SOADFLIT. (Edward Kae v Kimana Mondo and Finance Corporation Ltd (2020) N8681, followed and applied)
  3. Accordingly, the defendant’s argument on lack of pleadings had no merits as it was not captured as an issue to be argued at trial in the SOADFLIT. Moreso, the pleadings when read as a whole disclosed a cause of action. Liability was therefore established against the Defendant.
  4. Damages were not proven on the standard required hence a global sum was awarded for both general damages and economic loss.

Cases Cited:


Papua New Guinean Cases
Amaiu v Yalbees (2020) SC2046
Andrew Moka v MVIL (2004) SC729
Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24
Edward Kae v Kimana Mondo and Finance Corporation Ltd (2020) N8681
Jacklyundu Yalalao v Motor Vehicles Insurance (PNG) Trust (1996) N1488
Jacob Sibuaken v Neville Egari (2009) N3824
Kuman v Digicel (PNG) Ltd (2013) SC1232
Motor Vehicle Insurance (PNG) Trust -v- Pupune [1993] PNGLR 370
Motor Vehicle Insurance Limited v Maki Kol, SC902
Papua New Guinea Banking Corporation (PNGBC) v Tole (2002) SC694


Overseas Cases


Livingstone v Rawyards Coal Co [1880] UKHL 3; (1880) 5 App Cas 25 (HL), at 39


Counsel:


T. Tape & G.Joel, for the Plaintiff
P. Othas, for the First and Second Defendants


JUDGMENT


01st December 2021


  1. WURR, AJ: This was a trial on both liability and damages. The plaintiff is claiming damages for personal injuries sustained as a direct result of a motor vehicle accident which allegedly occurred along Waigani Drive in Port Moresby on 11 April 2010, where she was one of the passengers in a white double cab Toyota Hilux utility bearing registration number BBM 527. She claims the accident was caused by the negligent driving of the driver of another vehicle registration number BCA 204, Toyota Avalon. The plaintiff also seeks damages for economic loss and special damages for medical expenses incurred.
  2. The plaintiff claims the cause of action is based on the tort of negligence pursuant to Section 54(1)(a) of the Motor Vehicle (Third Party Insurance) Act.

RELEVANT FACTS


  1. The plaintiff adduced evidence into court without any objection by the defendants which sets out the relevant background and facts of the claim as follows:

PARTIES ARGUMENTS


  1. The plaintiff submitted that as per the SOADFLIT, the defendants admit liability but disputes the extent of the injuries suffered by the plaintiff which forms the basis and determines the award for damages. The plaintiff claims she has proven her claim on the balance of probabilities and therefore liability should be entered in her favor. In regard to damages, she submits damages be awarded based on the medical reports and photographs that are in evidence before the court. The plaintiff seeks K45, 000.00 for economic loss (past and future), K114, 886.79 in general damages for personal injuries and K1,070.00 as special damages for medical costs incurred. She submits for a total of K160, 956.79 in damages.
  2. The defendant on the other hand argued strongly that the claim ought to be dismissed on two grounds- firstly that the evidence was insufficient to prove that an accident did occur on 11 April 2010; and secondly that the statement of claim did not plead the tort of negligence and or Section 54(1) of the Motor Vehicle (Third Party Insurance) Act, the effect of which was that there was no cause of action either under statute or common law against the defendant.
  3. The defendant further submitted that in the event the claim was not dismissed on those grounds, and liability was entered in the plaintiff’s favor, the court should not place any weight on the medical reports because they are hearsay. The medical reports were attached to the plaintiff’s affidavit instead of the doctor(s) who authored the report(s), breaching Section 37 of the Evidence Act.
  4. Due to lack of evidence, the defendant submitted the following range of awards- K18, 000 – K22, 000 in general damages for personal injuries; and an amount between K7, 000 to K10, 000 for economic loss. In total the defendant submitted that an award between K25, 000.00 to K30, 000.00 was appropriate in the circumstances. As to special damages, the defendant submitted that she can be awarded that component of the claim as long as the plaintiff proved her losses on the balance of probabilities to the Court’s satisfaction.

RELEVANT ISSUES


  1. The relevant issues for determination before this court are:
    1. Whether or not the claim should be dismissed for want of pleadings and for not disclosing a reasonable cause of action pursuant to Order 12 Rule 40(1)(a) of the National Court Rules?
    2. If the answer to 1 is in the negative, then whether or not liability should be entered against the defendant
    3. If the answer to 2 is in the affirmative, then should damages be awarded to the plaintiff, and if so, how much?

WHETHER THE CLAIM SHOUD BE DISMISSED FOR WANT OF PLEADINGS AND FOR NOT DISLCOSING A REASONABLE CAUSE OF ACTION


  1. The defendant argued strongly that the plaintiff’s claim did not plead a cause of action either in common law (tort of negligence) or statute (Section 54 of the Motor Vehicle (Third Party Insurance) Act, hence the claim should be dismissed in its entirety. The plaintiff was taken by surprise with this new argument because according to the SOADFLIT which was agreed and signed by both parties, only two issues were identified to be considered at trial:
    1. Whether or not the plaintiff sustained injuries as a result of her involvement in the vehicle accident on the 11th of April 2010.
    2. Whether or not the defendant is liable to pay damages to the plaintiff and if so, how much is the defendant liable to pay.
  2. A similar situation arose recently in the case of Edward Kae v Kimana Mondo and Finance Corporation Ltd (2020) N8681 which was a case where His Honour Deputy Chief Justice presided over. In that case the plaintiff claimed that Finance Corporation Ltd (Fincorp) sold his property under its marketing value. He also claimed that that was in breach of a loan and mortgage agreement they had. An entry of default judgment resolved liability in favour of the plaintiff with damages to be assessed. Based on that judgment, the parties settled upon a SOADFLIT rendering all facts undisputed. The parties agreed to and the trial proceeded on agreed facts and issues and submissions only. In that case the plaintiff argued that the entry of default judgment resolved in his favour all the facts he pleaded against Fincorp. He also submitted that the SOADFLIT settled all the relevant facts and made a claim for damages to be assessed. In response, Fincorp sought dismissal of the proceeding based on several grounds; that firstly trial should have proceeded in the normal way because the market value of the property was in dispute. Secondly, it took issue with the SOADFLIT claiming that (1) Fincorp was of the view that the SOADFLIT concerned the question of liability only; (2) the SOADFLIT had inconsistencies Fincorp failed to notice at the time of giving its agreement; (3) Plaintiff’s statement of claim pleaded in the alternative for a claim based on negligence and or a claim based on breach of statutory duty; (4) Plaintiff’s statement of claim failed to properly plead with particulars his claim in negligence and damages (5) Finally, it claimed the plaintiff produced no evidence substantiating his claims.
  3. His Honour Deputy Chief Justice Kandakasi had this to say about SOADFLIT:
    1. Requiring parties to settle upon a SOADFLI or resolution or a statement of facts and issues in any case before the Courts, is a well-accepted part of effective case management. Order 10, 9A – Listings Rules r.7 (4) (j) and r.9 (2) (e) of the National Court Rules provides the statutory foundation for such statements. Hence, once the parties have agreed to such a statement, it constitutes a concession made by them and it amounts to an admission similar to admissions in response to a statement of claim, or an admission voluntarily given under O.9, r. 28 of the Court Rules.
    2. SOADFLI are necessary to enable an expedited resolution of proceedings in court by avoiding unnecessary delays, unnecessary lengthy trials and costs. Therefore our courts have taken any delays or failure to promptly settle upon a SOADFLI as serious failures and have in some cases, dismissed proceedings( See Ekawi Tayanda v. Gigira Development Corporation Limited & Ors (2017) N6756, per Shepherd J).
    3. A SOADFLI is derived from the pleadings and the evidence parties wish rely on at trial. Hence, it is not a pleading but a representation of the parties crystallized position in their case. Accordingly, where such a statement contains agreed facts, they have been treated as admissions in a defense filed in response to a statement of claim which minimizes the issues for trial. (Markham Farming Company Ltd v. Tiri Wanga & Ors. (2019) N8103, per Gavara-Nanu J, followed). makes that point clear in the following terms:

“24. As to the forfeiture, it is not disputed that no notice of forfeiture was served on the plaintiff. In paragraph 6 of the SADFLI, the respondents agreed that the first respondent did not serve the forfeiture notice on the plaintiff. This was a concession by the respondents which is relevant to the primary issue of whether the forfeiture was valid.


28. The concession by the respondents in the SADFLI that the forfeiture notice was not served on the plaintiff is fatal. A concession is akin to an admission in a defence to a statement of claim. The concession is therefore binding on the respondents. The binding effect of a concession made in a SADFLI derives from the terms of the SADFLI which are mutually agreed to by the parties, following Directional Orders given by the Court. Such the concession narrows down the issues for litigation. See, Order 16 r 13 (6) (4) of the National Court Rules. In this instance, the concession also contributed to the effective disposal of the substantive issues. See, also Order 16 r 8 (l) (d) (Schedule A) of the National Court Rules.”


  1. Once a party has given his or her admission or agreement in respect of all or parts of the relevant facts in a case, that party is bound by the agreement or admission. In appropriate cases, this might attract the application of the provisions of O.9, r.30 which provides for the entry of judgment on admissions.
  2. In the absence of any specific case law on point, the principles that govern the repudiation or invalidation of a contract and or a set aside of orders by consent, should be adopted and applied with the necessary modifications to set aside a SADFLI. This is appropriate because a SADFLI represents an agreement between the parties as is the case with contracts and consent orders.
  3. Unless a case is made out according to law on a known ground, a SADFLI cannot be revisited. The parties are bound by their agreement.
  4. The SADFLI prevails over the pleadings.
  5. As held in the case of Kae v Mondo, parties are bound by their agreement; moreover, the SOADFLIT overrides the pleadings. Hence it is not open to the defendant to raise any other issues apart from what has been agreed upon. The defendant’s argument on pleadings is therefore flawed and without merit.
  6. I also reject the defendant’s argument on that basis that when the statement of claim is read as a whole, the cause of action is clear. It is a claim based on the tort of negligence where the other driver drove negligently into the vehicle that the plaintiff was a passenger of, causing the accident which resulted in two deaths and several people being seriously injured, one of whom was the plaintiff. The Supreme Court in Kuman v Digicel (PNG) Ltd (2013) SC1232 at page 14 said this about pleadings:

“...whilst desirable, it is not essential that every element of every cause of action be expressly pleaded in a statement of claim. What is essential is that the statement of claim read as a whole discloses a cause of action in sufficiently clear terms to put the defendant on notice as to the claim that it has to meet.


  1. This principle was adopted and applied in the recent Supreme Court case of Amaiu v Yalbees (2020) SC 2046, which went further to hold that these matters overcome any insufficiency in the explicit pleading of the duty of care. The Supreme Court in the case of Amaiu v Yalbees (supra) adopted the observations of Gavara-Nanu J in Richard Manui v ANZ Banking Group (PNG) Ltd (2008) N3405 where His Honour held at page 27]:

“[T]here were further particulars provided by the plaintiff regarding (the) defendant's alleged negligence. Thus, the defendant had been fully informed of the claim of negligence against it and the basis of such claim. This overcomes any insufficiency in pleading negligence in the statement of claim by the plaintiff.”


  1. There is also a third reason why I reject the defendant’s argument and that is that the defendant has not filed a defence and therefore does not have legs to stand on to raise such arguments according to the case of Papua New Guinea Banking Corporation (PNGBC) v Tole (2002) SC 694. The law on pleadings is clear- what has not been pleaded cannot be raised and relied on either in evidence or in submissions.
  2. The fourth reason I reject the defendant’s argument on pleadings is that it is a belated argument. This proceeding was on foot since 2013. At no time did the defendant challenge the pleadings in the early stages of the proceeding by either filing an application to dismiss the claim for want of pleadings or by requesting for better particulars of the claim. This is the first time the defendant has raised this issue after the claim has been on foot for over eight years. The Supreme Court in the case of Motor Vehicle Insurance (PNG) Trust -v- Pupune [1993] PNGLR 370 adopted the following principle from the case of Gould v Mount Oxide Mines Ltd [1916] HC 81 [1916] HCA 81; (1916) 22 CLR 490:

"But pleadings are only a means to an end, and if the parties in fighting their legal battles choose to restrict them, or to enlarge them, or to disregard them and meet each other on issues fairly fought out, it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest. There is abundant authority for this....”


  1. For all those reasons, I am not persuaded to dismiss this claim for want of pleadings or for not disclosing a cause of action pursuant to Order 12 Rule 40 of the National Court Rules. This argument is rejected. I now move on to the second issue.

WHETHER OR NOT LIABILTY SHOULD BE ENTERED AGAINST THE DEFENDANT


  1. In the case of Kae v Mondo (supra), it was held that unless a case is made out according to law on a known ground, a SOADFLIT and an agreed mode of trial cannot be revisited. The parties are bound by their agreement.
  2. As per the SOADFLIT herein, it was agreed that:
    1. On the 11th August 2010, a Motor Vehicle registration No .BBM 527, Toyota Hilux, double cab, white in colour (hereinafter referred to as ‘the Hilux) driven by one Pr. Wiap Pando from the N.C. D. Traffic Light towards North Waigani along the Waigani Drive at around 12:00pm on a Sunday collided with another car registration number BCA 204, Toyota Avalon (hereinafter referred to as ‘the car’) driven by one Lucas Wanpis , driven in the same direction sped right into the tail of the Hilux which gave a sudden hard push that caused the Hilux to roll- over (overturn) from one side of the road , that is the road next to Waigani Village, to the other side of the road that is the road next to Dream Inn Hotel, along the Waigani Drive thus caused an accident.
    2. As a result of the accident couple of people were severely injured and two persons died, one Susan Niso, a relative of the Plaintiff and the Plaintiff’s eight year old son, Issac Waso, who was pronounced dead at the Pacific International Hospital at 3:30pm on the 11th April 2010.
    3. The Plaintiff in this Court proceeding was one of the persons who was in the Hilux involved in the said accident and sustained certain injuries.
  3. Based on the pleadings, evidence, SOADFLIT and submissions, I am satisfied that the plaintiff’s claim falls within Section 54(1)(a) of the Motor Vehicles (Third Party Insurance) Act, as it has been proven that:
  4. I am also satisfied that the plaintiff has established the five basic elements of the tort of negligence which are:
  5. Upon being satisfied that the plaintiff has proven all elements of negligence, and that it is a claim that falls within Section 54(1)(a) of the Motor Vehicles (Third Party Insurance) Act, I find that liability has been established against the defendant.

SHOULD DAMAGES BE AWARDED TO THE PLAINTIFF, AND IF SO, HOW MUCH?


  1. The law is well settled; a plaintiff must produce evidence establishing his damages even after liability has been established - either by default or after a trial. If no evidence is produced, the Court will have to decline to assess any damages.
  2. In assessing damages in personal injury cases, I agree with counsels that courts have made assessment on the common law principle of restitution in integram. This principle was developed in the case of Livingstone v Rawyards Coal Co [1880] UKHL 3; (1880) 5 App Cas 25 (HL), at 39. It was adopted and applied by the Supreme Court in the case of Motor Vehicle Insurance Limited v Maki Kol, SC 902, and is in the following terms:

“where any injury is to be compensated by damages, in settling the sum of money to be given for...damages you should as nearly as possible get at the sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation”.


  1. The plaintiff’s evidence consisted of photographs, treatment and clinical notes, and four medical reports from three different doctors produced on different dates. By chronological order, the first medical report is dated 27/07/2010 from Dr Tim Pyaku, Wabag General Hospital; second is dated 07/03/2011 by Dr Pyaku, Wabag General Hospital; third is dated 17/07/2012 by Dr Karol K Popei from St Mary Medical Centre; and the last most recent report is by Dr David Inaho of the School of Medicine and Health Sciences, University of Papua New Guinea dated 04/02/2021. However, the doctors who authored the reports did not depose any affidavit confirming the medical reports as required under Section 37 of the Evidence Act; instead, these medical reports mentioned were all attached to the plaintiff’s own affidavit.

PLAINTIFF’S ARGUMENT


  1. Mr Tape for the Plaintiff submitted that the plaintiff has proven her injuries and extent of injuries and economic loss both past and future on the balance of probabilities which is the required standard hence she should be awarded damages as claimed.

DEFENDANT’S ARGUMENT


  1. Mr Othas for the defendant argued that the medical reports adduced into evidence through the plaintiff’s affidavit were hearsay and should not be given weight to as they breached Section 37 of the Evidence Act. Even if the medical reports were considered, they cannot be relied on to establish the extent of the injuries sustained as the evidence is hearsay. Mr Othas further argued that the cases relied on by the plaintiff to support her claim are cases where the medical reports were properly adduced into evidence in accordance with Section 37 of the Evidence Act therefore the Court in those cases gave due weight and consideration to those medical reports and awarded damages accordingly. This case was not such a case and referred the Court to the case of Jacob Sibuaken v Neville Egari (2009) N3824 to support its contention.
  2. The defendant further submitted that the evidence of injuries sustained were as shown in the photographs however the extent of those injuries and permanent and residual disabilities must be proven with credible evidence. In the present case the defendant argued that the plaintiff has not proved the extent of those injuries as all the reports relied upon are hearsay.
  3. On the claim for economic loss, Mr Othas submitted that the plaintiff’s evidence was not corroborated hence no or a much lesser global figure should be awarded to the plaintiff. As to special damages, the defendant’s argument is that the Court can award this claim as long as the plaintiff proves it.

CONSIDERATION


  1. General Damages
  1. Having considered parties submissions on the last two issues, I am more persuaded by the defendant’s submissions because Section 37 of the Evidence Act clearly stipulates that medical reports must be brought into evidence by the author of the report. The court has held in many cases, including Sibuaken v Egari (supra), that where medical reports are attached to a plaintiff’s affidavit instead of the doctor who authored the report, it should not be admitted as it amounts to hearsay evidence. However, if the Court decides to allow it into evidence then the Court should place less or no weight at all on such reports.
  2. The plaintiff has not provided an explanation in her evidence or submissions why she could not comply with section 37 of the Evidence Act. A similar situation arose in Simbuaken v. Egari (supra) whereby the plaintiff's lawyers did not explain how and why they were not able to produce the doctor in Court for purposes of cross-examination. The report prepared by a doctor was attached to the plaintiff's affidavit. Although, the State raised objections in relation to its tendering, the Court accepted it, ruling that it would give it the appropriate weight. In this case we have the same scenario. It is now up to the court to give it the appropriate weight.
  3. I uphold the defendant’s argument that the medical reports in evidence are hearsay but based on the photographs, clinical and treatment notes in evidence I will place little weight on these reports. The result of this is that I am satisfied that the plaintiff suffered some permanent injuries to various parts of her body however the percentage awarded for loss of bodily function in the reports will not be given much weight and consideration. I will assess damages generally.
  4. I reject the plaintiff’s submission on general damages because all cases relied upon to advance her argument on quantum are cases where the medical reports were given due weight and relied upon by the Court to assess damages. In this case, the medical reports are in issue. Therefore, I accept the defendant’s submission, that an amount between K18, 000.00 – K22, 000.00 would be appropriate for pain, suffering and loss of amenities. I will award K22, 000.00.
  5. In Andrew Moka v MVIL (2004) SC729 the Supreme Court on appeal from a decision of the National Court, increased an award of K23,000 to K35,000. That represented an increase by over 134 percent from an award of K15,000 in the earlier case of Tambi -v- The State [1988-89] PNGLR 648 which the trial judge in the Andrew Moka case relied upon to arrive at the assessment of K23,000.00. The National Court in that case, took into account, the rise in inflation and the decrease in the purchasing power of the Kina since the award in Tambi’s case.
  6. In the case of MVIL -v- Maki Kol (supra) the Supreme Court in endorsing what was held in the case of Andrew Moka, said this:

23. This Court’s decision in the Andrew Moka case makes it clear that, the awards in the 1980s and 1990s are outdated and had increased the awards in personal injuries claims by over 134 percent. We agree with the observations of the Supreme Court in that case. On our part, we consider this necessary in the light of changes in the economy where costs of living have become far higher or expensive, with the purchasing power of the Kina substantially reduced. Dwelling on the kind of awards made in the 1980s and 1990s will no doubt place injured people like Maki Kol in a disadvantaged position in two respects. First, they will be left to live with their injuries and disabilities for the rest of their lives. Secondly the amount of compensation instead of restoring their losses as much as money is able to, it will leave them in a position where they will have no adequate compensation for their losses and may have to look elsewhere for their survival.


24. The award by the learned trial judge in this case, increased the award by well short of even a one hundred percent (100%) increase from the comparable verdicts His Honour considered. We do not consider the amount awarded by the National Court as reasonable compensation especially in today’s economic environment. We note that, without any formal cross appeal by Maki Kol, is seeking an increase of the award by the National Court up to K90,000. If there was a formal and proper cross appeal on foot, we would not hesitate to increase the award to K80,000 but because there is no such cross appeal, we are disinclined to increasing the award. In the circumstances, we are prepared to confirm the award by the National Court and dismiss the appeal against the award of general damages.”


  1. The cases referred to and relied upon by the defendants were made over 14 years ago and the price of basic goods and services has increased overtime. I take into account and am guided by what supreme court said in both cases about inflation and will therefore increase the award by 200%. The calculation will be; K22, 000 + (200% x K 22, 000) which is K66, 000.00. I accordingly award the plaintiff K66, 000.00 under this head.
    1. Economic Loss (Past and Future)
  2. There are two heads of claim under this head- loss of actual earnings/past economic loss and loss of future earnings/future economic loss. The law and principles applicable are well settled in this jurisdiction and the case on point is MVIL -v- Maki Kol (supra) where the Supreme made the following observations:

“26. The principles on which both past and future economic loss can be awarded is clear, so much so that, there is no need for us to cite any particular authority on point. One of the most important principles is that, a plaintiff must establish his economic loss, before the Court can make an award for any such losses. This is not a difficult thing to do. If the plaintiff was engaged in an income earning activity as at the time of his or her sustaining the injuries, he or she must produce evidence of both the income generating activity and its monetary value, the amounts he or she has lost and stands to lose as a result of the injuries and the disabilities. Where a plaintiff produces such evidence, the Court is duty bound to assess the plaintiff’s past and future economic losses. On the other hand, if a plaintiff fails to produce any such evidence, the Court can either make no award or make a nominal award having regard to the reduction in the plaintiff’s income earning capacity to support him or herself and his or her dependants.”


  1. In the case of Jacklyundu Yalalao v Motor Vehicles Insurance (PNG) Trust (1996) N1488 His Honour Justice Injia (as he then was) when awarding a global sum of K10, 000.00 for past and future economic loss said this:

In assessing his loss of earning capacity, it is difficult to use the type of job and income he was earning before the accident as a basis to calculate future loss because he did not possess any special skill apart from being a labourer and security guard for SHRM which is a special catering company which was contracted by BCL. Upon the closure of mine, whether the Plaintiff would have obtained similar employment services elsewhere on similar income is doubtful. Doing the best of estimates, I award a nominal amount of K10, 000.00 for economic loss generally, inclusive of future economic loss.


  1. In this case, the plaintiff underwent training as a secretary and administration officer at Special Training Centre, Wapenamanda, Enga Province. She was employed for some time as an office secretary and administration manager however she left that job and was running her late husband’s trade store and doing some gardening in the village when she was involved in this accident. There is also evidence that the trade store business was run down after her husband passed away on 06/12/2011 as per the Medical Death Certificate contained in Exhibit P1.
  2. It is difficult for me to assess the plaintiff’s loss of earning capacity given those facts and her employment status at the time of the accident. She does however possess some qualification and experience to find employment as a secretary or administration officer at the time of the accident however whether she would obtain such an employment is doubtful. The circumstances in this case is quite similar to the Yalalao (supra) case hence I will follow the approach taken by Injia J (as he then was) and award a global sum of K20, 000.00. The reason for the increase is that the plaintiff in this case is skilled, unlike the plaintiff in Yalalao case. Furthermore, that case was decided more than twenty-five years hence inflation is a relevant factor to take into consideration. I therefore award K20, 000.00 under this head.
    1. Special Damages (medical expenses)
  3. As for the claim for special damages, the defendant did not take any issue but submitted that it was up to the plaintiff to prove the claim.
  4. There is in evidence a receipt of K200.00 for medical report. Apart from that I have no doubt that the plaintiff did incur additional cost for transport, medication, etcetera when attending to her injuries. The plaintiff submits for an amount of K1,070.00 under this head. I am satisfied that this amount is reasonable and award it accordingly.

SUMMARY OF DAMAGES AWARDED


  1. The summary of damages awarded is as follows:
    1. General Damages : K66,000.00
    2. Economic loss (past and future) : K20,000.00
    1. Special Damages : K 1,070.00

TOTAL : K87,070.00


INTEREST


The plaintiff seeks interest at a rate of 8% annually pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act, from filing of the writ of summons which is 04 July 2013, to the date of judgement in this matter, 01 December 2021. The awarding of interest under the Judicial Proceedings (Interest on Debts and Damages) Act is discretionary: Cheong Supermarket Pty Ltd v Pery Muro (1987) PNGLR 24. In the exercise of my discretion, I will award interest at the rate of 8% annually on the total amount awarded of K87, 070 .00 from the date of filing of the writ of summons on 04 July 2013 to the date of judgment, 01 December 2021, which is a total of 8 years, 4 months and 27 days. (8.4 years x 8% x K87, 070.00 = K58, 511.00). I assess and award interest at K58, 511.00.


COST


  1. Cost will follow the event, that is the defendant shall pay the plaintiff’s cost on a party-party basis, which shall, if not agreed, be taxed.

JUDGMENT


  1. The formal orders of the Court are:
  2. Liability is established against the defendant.
  3. The defendant shall pay to the plaintiff damages in the sum of K87, 070.00 in total damages, plus interest of K58, 511.00 being a total sum of K145, 581.00.
  4. The defendant shall pay the plaintiff’s costs on a party-party basis, which shall, if not agreed, be taxed.
  5. File is closed, subject to enforcement proceedings.

Judgment and orders accordingly.
________________________________________________________________
Kandawalyn Lawyers: Lawyer for the Plaintiff
Paul Othas Lawyers: Lawyer for the Defendant

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